Vetting Board declared judges Emmanuel O’Kubasu, Samuel Bosire, Riaga Omollo and Joseph Nyamu unfit to serve the Kenyan judiciary.
BY SAM ALFAN.
The fate of eight High Court suspended Judges, who were found unfit to serve the Judiciary three years ago, was sealed on Friday when the High Court ruled it had no power to entertain their grievances.
A five-Judge bench led by Justice Isaac Lenaola confirmed the decision made by the Supreme Court on November 5, last year, which recommendations for their removal by the Vetting of Judges and Magistrates Board (VJMB) were final.
The only lawful option was to dismiss the petitions by three former Court of Appeal Judges, R.S.C. Omolo, Samuel Bosire and Joseph Nyamu and four High Court Judges Jeanne Gacheche, Mary Ang’awa, Muga Apondi and the late Joyce Khaminwa, who had protested violation of their fundamental rights, the court declared.
The other suspended Judges who had challenged their removal were Justices Emmanuel O’Kubasu, Leonard Njagi and Mary Murugi Mugo.
The bench, chaired by Justice Isaac Lenaola, agreed with Senior Counsel Paul Muite-for the Judicial Service Commission (JSC) and lawyer Charles Kanjama-for the Law Society of Kenya (LSK) that the High Court must obey executive declarations by the Supreme Court. It re-affirmed that the Supreme Court’s decision was binding and there were no contradictions or conflicts in two judgments regarding the role of VJMB in their removal.
Muite had argued that the tribunal’s recommendations had found the top judicial services unfit to serve and the court had the duty to protect tax-payers’ money since they continued enjoying salaries and other fringe benefits without working for it
But the suspended Judges had reiterated they could only be legally removed by the President and not through unlawful means. The President was their sole appointing authority and there existed constitutional machinery and safeguards to sack them, they had claimed.
Veteran lawyers John Khaminwa, Steve Mwenesi and Ochieng Oduol told a five-Judge bench that the tribunal’s findings that the Judges deserved to be shown the door have never been gazetted and there was no decree by the Supreme Court that could enforce their removal.
They told Justices Lenaola, George Odunga, Mumbi Ngugi, Pauline Nyamweya and William Musyoka that the Sharad Rao-led tribunal’s mandate was limited to interrogate the conduct of judicial officers since their appointment and the promulgation of the new Constitution. The Supreme Court’s decision that the board enjoyed exclusive power to handle the disciplinary cases with finality did not have the force of the law and was inconsistent with the Constitution, they said.
In their contested decision, Dr Mutunga, Deputy Chief Justice Kalpana Rawal and Justices Jacton Boma Ojwang, Philip Tunoi, Smokin Wanjala and Njoki Ndung’u had reiterated that the nine-member board enjoyed constitutional protection and the outcome of its vetting could not be challenged before any court of law.
They had overturned decisions made by a five-member High Court bench on october30, 2012 and by the five-member Court of Appeal bench on December 18, 2013, that the vetting board was a creature of Statute and its findings could be challenged before the High Court.